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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AB (Surrogacy: Consent), Re [2016] EWHC 2643 (Fam) (25 October 2016) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2016/2643.html Cite as: [2016] EWHC 2643 (Fam), [2017] 2 FLR 217 |
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Siting at Canterbury
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
C and D |
Applicants |
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- and - |
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E and F |
1st and 2nd Respondents |
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- and - |
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A and B (by their Guardian) |
3rd and 4th Respondents |
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Mr Richard Jones (instructed by Wedlake Bell) for the 1st and 2nd Respondents
(Both Counsel and Solicitor Acted Pro Bono)
Ms Deirdre Fottrell QC (instructed by Goodman Ray) for the 3rd and 4th Respondents
Hearing date: 29 September 2016
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Crown Copyright ©
Mrs Justice Theis DBE :
Introduction:
(1) They remain living with the applicants, who are their biological and psychological parents, but not their legal parents. The child arrangements order, which gives the applicants parental responsibility, lasts until they are 18 years old.
(2) The respondents, who wish to play no part in the children's lives, remain the children's legal parents throughout their lives by virtue of ss 33 and 35 HFEA.
Relevant background
Discussion
'(3) …section 67 (1) ACA 2002 which provides 'An adopted person is to be treated in law as if born as the child of the adopters or adopter.' This is what demarks the difference between the two orders. Adoption orders create a presumption in law that the child is treated as if the biological child of the adopters. A parental order does not require that presumption to be made. Both orders are transformative, but a parental order proceeds on the assumption one of the applicants is the biological parent. That is one of the key criteria in s 54 HFEA. It doesn't change the child's lineage as an adoption order does; a parental order creates a legal parentage and removes the legal parentage of the birth family under the provisions of the HFEA 2008. Unlike adoption there is already a biological link with the applicants before the parental order application is made. Its purpose is to create legal parentage around an already concluded lineage connection.
(4) From the point of view of the child the orders are different. An adopted child is seen to have had a family created for it, whereas in a surrogacy arrangement the child's conception and birth has been commissioned by the parents, the child has a biological connection and the same identity as one of the parents. The latter arrangement is more congruent with a parental order than an adoption order.
(5) These differences are important welfare considerations from the child's perspective. These are the reality of the identity issues children will need to resolve. In surrogacy situations the court by making a parental order settles the identity
issue and does not leave other fictions to be resolved, which could be the case if an adoption order was made in these situations.
Conclusion